1926-01-16 — Page 5

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THE ATHERLEY TRIAL. SPEECHES FOR THE DEFENCE. AND PROSECUTION.

THE HONGKONG DAILY PRESS, SATURDAY, JANUARY 16ra, 1926

Mr. Zeitlyn: When I had that infor mation it was utterly useless,

Mr. Zeitlyn then dealt with the sealed envelopes which had been produced at CASE TO CONCLUDE TO-DAY.

Thursday's hearing.

Counsel (to witness): Take RV.A.1. The Atherley trial was continued before Sir Henry Gollan, the Chief Justice, at | You said that the handwriting was yours, the Criminal Sessions yesterday Be-but the figures are not!-The bandwriting fore adjournment for the tiffin hour is similar to mine, but the g in gold, and Alr. Zeitlyn, Counsel for the defence, the dollar sign are not so I should said that he did not feel well enough to think the figures are the compradore's or make his speech for the defence. His those of Rorn, the clerk. Neither are the Lordship stated that he wanted to finish words "Oct-Nov." in my handwriting. the case this week, and if cecessary

His Lordship: Suppose you eliminato would sit on Saturday to conclude it.

everything except "Mr. Chay, please At the morning hearing Mr. Jenkin,

caver exchange," which, you agree is in Counsel for the prosecution, concluded his your writing. It seems to me to have no meaning at all-The memorandum must have been given to me. There would be no sense in it otherwise.

cross-examination and Mr. Zeitlyn re- examined his client.

T

Replying to Mr. Jonkin, accused who was asked to examine his backing account for 1924 and 1923, agreed that they varied considerably. He, however, explained

Mr. Jenkin: I put to Mr. Atheries that sometimes part of his salary was drawn by Mrs. Atherley in San Francisco. some figures which were not his. That Questioned as to a cheque for $3,000 envelope contains some of them. drawn on May 27th, 1924, he said it was Mr. Zeitlyn: I must confess that I. too, in favour of Mr. Tobias, broker. A restrain the natural temptation to open theque for 84,090 on June 24th was for. But I need not pursue the matter

further. Messrs. Carroll Bros. and one for 81,904.30 for Fred Ellis & Co. Both cheques were in respect of share dealings.

Counsel then asked accused to signa mumber of blank cheques on the Inter-a national Bank.

17

In further cross-examination accused, persisted that in drawing his cheques he did not know that he was refunding money which he had taken from the Com- pany's account He agreed that entries appeared in the Company's books, hut contended that his cheques were mix- applied by the compradore. Questioned again with regard to a certain intricate calculation, the amount of which was

**A÷UNTRUE STORY."

The case made out against Atherley had been guardedly dealt with in his learned friend's opening. ft was that the compradore bad instructions which he Passed on to the cashier, that all suma collected were to be handed over to Atherley, not part-mums," but all sums as collected. Considérable comment had been directed to that point, and they man who was so anxious to help himself would have to ask themselves why the

out of the sources of his employers, did not take the money handed over to him The sums chosen had clearly demonstrated that that story was untrue. In no mincing language Atherley told them that he was pressed for debts and lived at a exte vagot take the monies which some extravagance. And in that period were handed to him.

he had advanced to him And there was even is stronger adinission. He had said, I had is always in mind to turn these LO..'s and bills against the Com pany, if Atherley did not pay. And they would remember that a very wary, wily man had made, that answer.

NOT A COURT OF ETHICS. “Counsel, continuing, said that it was not a court of ethics but one of criminal

lay, if it were open to censure, must not jurisdiction. The moral conduct of Ather-

influence them in any way. They would have to deal solely with the charge of misappropriation.

~ATHERLET'S FITURE

Dealing with the written evidence, Counsel said that the Chinese book was kept by the cashier,

nominee of the compradore's guarantor. Throughout there was an entry "Handed to managet. THE "MYSTERIOUS" QUESTION. paid to bank another day." How could The compradors had control of the that be interpreted except that Atherley's Company's paying-in, book. That man case was the true one. Seventeen times Mr. Zeitlyn: I have here R.V.A.&. It said he followed instructions and handed that entry occurred, overwhelming evi, is an unopened envelope.

the money over to Atherley. Take andence that the transaction was between the story that all monies should be hand amount for $870. Is that consistent with two persons only. ed over On April 11th 11,543 was col

Mr. Zeitlyn, concluding, said that in lected, and Atherley paid into his decount

365. Why this restraint, why this self- all his life Atherley had never had any denial on the part of a man who had thing alleged against his probity. There said to the compradore, pay all moneys was nothing in his past life which the over to me" Was that the truth? Was Prosecution could bring against him. not Atherley's story more acceptable?othing which his learned friend could On April 23rd, there was collected $32 find even if he searched minutely with his $336 was credited to Atherley: April 24th microscope. In considering their verdict, collections were $10,000; 31,230 was paid they would be determining the future of into Atherley's account; May 23rd showed Atherley, but he had confidence that he a collection of $12,977, and only 8487 went would be found not guilty. to Atherley; and out of $2,943 collected on May Bist Atherley's account showed an entry for $76., He (Counsel) could not offer a satisfactory answer with regard to the huge figures which had later gone into Atherley's account, but Atherley hat His Lordship: I understood it to be a stated that they might be sums, regard sort of reconstruction of the original.

ing, which the compradore felt there was no urgeney in paying thein into the bank. ile (Counsel) would suggest that it was the most probable zaswer to that mysteri ous question.

Counsel after questioning his client on R.V.A.2 and R.V.A.3.

handed him R.V.A.4. and said that it was put in as carbon copy of an original document. Mr. Jenkin said the topy from which it had been" taken had not been suggested as the original one.

THE PROSECUTION..

Mr. Jenkin, Counsel for the prosecn. tien: said that he found suficient in the ease without going into Mr. Atherley's iife to help him to make his case stronger. Mr. Zeitlyn had seferred to the large amount of scaffolding which had been erected around such simple charges. He to enter into all the dealings which Atherley had bad.

Mr. Jenkin: I made.. it from the and paid them into Athericy's account himself had erected it when he decided

depositions,

Mr. Zeitlyn remarked that if that were 2, he could not quite see the value of it. He then questioned Athericy with regard to R. V.3.5. which showed an item

QUESTION OF WORDS,

The true solution was whether, Ather- ley knew in fact that monies of the Com- pany were going into his account, and refunding cheques did he know he was the Company. He refunding them to

similar to a cheque he had drawn of 8903.00 parported to have been paid him state that they were fradulently (Counself held that he did know, and

accused swore that when he wrote down those figures, he had no idea of any con- nection between those particular items

and the firm's accounts.

This closed the cross-examination. Replying to Mr. Zeitlyn. accused said the procedure with regard to the en- doracment of cheques was that they were brought to him by the vashier, with the Company's chep already on them, and he (Atherley) signed them. He was not interested in the amounts because it was solely a matter for the compradore de partment He repeated in response to further questions that the whole transac tion was in the nature of a loan between him and the compradore. He also re- iterated that the office books were in the compradore's charge.

COMPANT'S SECURITIES- Counsel examined him at length con- cerning the changing of the Company's securities from one bank to another, and accused repeated what he had said on several occasions, that he did so because Mr. Wong, the compradore's guarantor, was often exchanging the shares.

Replying to further questions, he said that Mr. Parkhurst arrived in the Colony in August 1994, and he then knew that the securities had been deposited in the International Bank.

Mr. Jenkin raised an objection, saying that when he asked Atherley the same question be replied that no one knew that shares were deposited in this bank.

Mr. Zeitlyn said that. Atherley must have meant knowledge at the time of the

transfer.

Counsel: You told us, Atherlay, that nobody knew that you took the securities from the Chartered Bank and deposited them in the International-That is so, but it was afterwards known that the transfer had been made.

into accused's credi:

This concluded the examination of Atherley who had been in the witness-box ler three days.

A BANKEL'S EVIDENCE. Saumel T.-Bitting, aa accountant in the International Bank, whe was called hy the defence, saith that Atherley had de posited various securities in the bank for infe keeping. He said that an overdraft could not be given, to a person who had securities in the bank, unless arrange ments had previously been made.

Mr. Jenkin: Could not a person over draw on the strength of securities de posited-Not unless he had arranged for it.

*

His Lordship Is it not possible that if a cheque were drawn and there were 20 assets, you would claim on the securt ties-No we could not do that. Cases have been decided both ways, but it is a doubtful point.

THE DEFENCE.

.

Continuing Mr. Zeitlyn said that in dealing with the hocks they had heard misteading, and he did not feel that he must withdraw one single word. They were inise, they were misleading.

His Lordship Are you not going against your client?

Mr. Zeitlyn: I said Fratdulently mis- lending.

His Lordship: Do you persist in the charges of finud after your client said that he would withdraw them.

his learned friend had tried to get out of it by bringing in suggestions of fraud.

Having regard to Atherley's evidence entirely be submitted that it was an affront to the intelligence of six men te ask them to believe that from start to finish, he did not know where the monies came from, nor the true purpose for which every cheque was drawn by him. A deposit slip for May 8th showed that the totals collected were exactly the amount of a cheque drawn by Atherley. That was for the purpose of refunding monies, he had previously taken. They tricate calculations, and Atherley would would remember those examples of in- have them believe that he did not know what they were for. Can you believe that this man, of whose probity and integrity so much has been made, is telling you the truth?

Mr. Zeitlyn said "that they were surely misleading and His Lordship, concurring. said that there was a great deal of differ. ence between misleading and fraud. Chinese cash book was supposed to be a Continuing, Mr. Zeitlyn said that the translation of the English book. It was misnomer, and it did not show a true statement of affairs. The person charged stathe posting up of the book had not been called. The compradore said that

This cheque of Atherley's on May 28th he did not make the entries, but he did

was for $335.19. Collections for the day nake some because they were in his hand- writing. According to his agreement, it totalled the same amount. The exaut should have shown the true state of amount also appears in the bank's pay- affairs. It was wholly misleading. Couning-in book. On May 19th, 8993.60 was sel pointed out that there were entries. paid into his account, and a like sum In the afternoon speeches for the de

Continuing. Mr. Jenkin said that Ather fence and the prosecution were delivered stating that monies were paid to a cer- appears in collections for the day.

Mr. Zeitlyn, addressing the jury, said tain bank, and it was known that the that in the course of the aihe days which Company was not dealing with the bank ley's case throughout had been that his at the time. And throughout the com- own private banking account was never the case had taken, there had, heen a

pradore had assumed full responsibility bis hands: Could that be credited? great deal of scaffolding raised around for those accounts.

THE OBVIOUS EXPLANATION. the small structure of the case. They With regard to Atherley's dealings would have to address their minds to the with the securities, he was entitled to

Dealing with the calculations, Counsel charge, consisting of four counts, that deposit them as he desired. It was an

said that the only obvious and true ex- the accused had on four specific days innocent thing to do at the time, but now planation was that they were clicctions received several sums for and on account that his conduct was under review it was refonding. April 1st showed of Getz Fros.. his employers. That was stated that the securities were transferred of 81,213.18. The paying-in slip showed the charge. The question was whether

so as to enable him to obtain loans on like. amount and prisoner's banking he received those monies.

then He had said that he had no inten- account. And on the same day he drew

a cheque for the same amount. The major portion of the case was contion of doing that, and i be had the cerned with what his learned friend had intention, that would be defeated by his On six occasions when monics were paid called coincidences. A cheque was having put them there for safe keeping into his account, he drew cheques. Could paid into Atherley's account, and a cheque An accountant from the bank had said they believe that day after day, some for a similar amount was paid by Ather that no such demand, had been made times three times in one day that the ley into the account of the Company by Atherley. It was suggested that his compradore would go into Atherley's He (Counsel) was not concerned whether credit would be enhanced, but that had office and hand over 0.5'd. bills and Atherley knew they were the same or been disproved by the bank accountant.

I.O.U.'s to be paid for, and grant loans that they were repayments of amounts

at the same time? It would be an affront taken out of the Company's account. If

to believe that any such thing could take the money was passed to him by the com-

place.. pradore, it did not matter. **

COMMINGENSE

22...

To whom was it known To Hr. Park

Dealing with exbibit D, a document hurst in August 1921. I showed him the

On April 22nd there was "not only a which Atherley said was a receipt which receipt for the compradore's securities. For the purposes of the defence it he had signed when the Company's chop large amount paid into his account but Further replying to the question, ac would be the easiest way to put it that was not on it, Counsel pointed out that he also drew two very large cheques. Ou cused aaid that Mr. Parkhurst had remonies advanced by the compradore to the carbon copy had been produced, and one side 32,000 odd-came in and $1,949 quested to see the securities so that he Atherley were monies from the Company. neither the word reccwed," nor the went out on the other. Could it be be might examine them personally. Mr Atherley would not take that view of it. chop was on it. He held that such a lieved that three times on that day the Parkhurst then wished to see the man- He persisted. with determination that the proceeding was not usual in offices. It compradore had handed money, to Ather nger of the Charter d Bank and be true aspect of the case was that the coui- was never done, and he would ask themley and be had paid some back. It was (Atherley) took the securities along with pradore came to him with 1.0.0's and to disbelieve the cashier's story; when he the time when Atherley was living a him and deposited them there. Mr. Park K'a bills and these together made a stated that the document had the chop super-extravagant life, and they would burst raised no objection when told that total for which he drew a cheque and and the word "received" on it, when remember such item as milk and suit the securities wero in the International handed it to the compradore Atherley Atherley signed it. They had had a cases. You want a lot of children and Bank:

had persisted in statements which de- demonstration by microscope and other a lot of milk, gentlemen, to raise such Counsel: You told us that you never manded a large measure of credulity instruments. There was no need of an amount," added Counsel intended to use these securities to When a man did not accept an explana, microscope, it was only a matter of com- strengthen your credit, nor to get loans tion which would be better for him, and monsense. Atherley had said that it was from them 1-That is so. I never tried persisted in a statement which was harder untrue, and he (Counsel) would rely on to raise loana on them, neither did I ever to believe, was it not better to believe their commonsense to know that it was suggest to the bank that I would require inon man a loan on these deposits.

Questioned as to exhibit D., he reiter-: ated that when he signed it, there was no Company's chop on it, nor the word "received.'

THREE HEADS.

Was it a coincidence, said Mr. Jenkin, that this most peculiar account for a man' on this man's salary, into which money was poured at a rate which made even members practising at the Bar enviona 1 Was it a coincidence that the account was THE COMPRADORE'S" WILINERS.

Proceeding, Mr.. Zeitlyn said that he opened on Settlernent Day-en the eve Continuing, Mr. Zeitlyn said they had

would give positive evidence that the prior to the day when he had to pay over seen the compradore in the box. He was a man of considerable wiliness, he was transaction between Atherley and the certain sums? Was it a coincidence that on this day the Company's money went Mr. Zeitlyn put in accused's power of not a gullible person but one who would compradore was in the nature of loans. attorney, a clause of which he had read, pot readily assent unless the truth was. Jie would deal with them under three into this account, and not into the Com- which authorised him to sign, endorse and forced out of him. They would recollect heads-handwriting evidence, verbal adpany's account! Was there any necessity do business with any, bank in the Colony that he (Counsel) had questioned him on mission and written evidence. Was it for Mr. Atherley to take a wad of the Accused also said that he had standing five or sis occasions about the officers not strange that throughout all the books Company's shares and put it into this letters of credit in Hongkong and he had of Getz Bros. He had asked him what there was not one entry, showing that other account1

This case was one in which there had never used them once for his own pur- was the position of Mr. Kelly, and he payment had been inade to Atherley on

had said he did not know. They would beball of Getz Broa, 1 Outside that er heen such à mass of details, but he would poses.

Counsel: At the police court there were consider the mentality of auch a man. hibit D., there was not a single docu-draw the Court's attention to the very numerous charges against you, and the And considering that, was it not probablement, not a single book, not a single line serious allegations that had been made other charges were formulated against that the story told by accused was the which would show any payment to Ather with regard to the Chinese cash book. you after the day, was fixed for the hear correct one! Was it not easy to believe ley on behalf of the Company. They He hoped it did not escape their atten. ing of the case in this, court Yes that the compradore had taken the monies would recollect that their foreman bad tion that when the man was in the bax it was not put to bim When such told my solicitor at the time what of the Company as his owa? And when naked the compradore why there was no thought of exhibit D., and. stated that it monies were paid back was it not prob- entry, and be bad replied that having allegations were made, it was expected was forged. He advised me to reserve able that he took O.K'd. bills and LO.U.'s handed the monies over to Atherley, he that they would be substantiated.

which totalled the som handed over to bad finished with the matter. my defence. P

Atherley Surely, that was not an im probable explanation. In the light of the character of the man in the box, this true explanation could well carry more confidence in the minds of the gentlemen of the jury for that reason.

You were told yesterday that Mr. Kelly prosecuted you. Was he not bound over in his own recognisances to give evidence In this odurt1-Yes, E

Br. Jonkin: You could subpana him if his presence was necessary.

Then there was, the compradore's ad- mission. He (Counsel) could not con- ceive of anything of greater support to the defence than an admission made by the compradore, that he looked to Ather ley for repayment of the money which

In his own judgment, tie had consider. ed that the circumstances of this case were so strong that he did not wish to weary them with several details.

His Lordship adjourned the case until 10:20 this morning, when it is expected that the trial will be concluded.

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